EXHIBIT 10.13(A)
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as of the
14th day of May, 2002, by and between SEAPORT PLAZA ASSOCIATES, LLC, a
California limited liability company ("Landlord"), and THE 3DO COMPANY, a
California corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated July 12, 1999
(the "Lease"). Pursuant to the Lease, Landlord has leased to Tenant space
currently containing approximately 159,350 rentable square feet (the
"Original Premises") consisting of approximately (i) 79,675 rentable square
feet (the "100 Premises") which comprises the entire rentable square
footage of the building known as 000 Xxxxxxxx Xxx located at 000 Xxxxxxxx
Xxx, Xxxxxxx Xxxx, Xxxxxxxxxx (the "100 Building"); and (ii) 79,675
rentable square feet (the "200 Premises"), which comprises the entire
rentable square footage of the building known as 000 Xxxxxxxx Xxx, located
at 000 Xxxxxxxx Xxx, Xxxxxxx Xxxx, Xxxxxxxxxx (the "200 Building").
B. Tenant desires to surrender a portion of the Premises to Landlord
containing approximately 79,675 rentable square feet described as the 100
Premises in the 100 Building as shown on Exhibit A hereto (the "Reduction
Space", provided that the 100 Premises and the Reduction Space are the same
premises and shall be referred to hereinafter in this Amendment
interchangeably as the 100 Premises and the Reduction Space) and that the
Lease be appropriately amended, and Landlord is willing to accept such
surrender on the following terms and conditions.
C. The Lease by its terms shall expire on November 12, 2012 ("Prior
Termination Date"), and the parties desire an early termination of the Term
of the Lease, all on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. Reduction.
A. Tenant shall vacate the Reduction Space in accordance with the terms
of the Lease on or prior to June 29, 2002, which is the date
immediately preceding the Reduction Effective Date (defined in I.B.
below) and Tenant shall fully comply with its obligations under the
Lease, as modified by this Amendment, respecting the Reduction Space
up to the Reduction Effective Date, including those provisions
relating to the condition of the Reduction Space and removal therefrom
of Tenant's personal property (other than the Furniture, as
hereinafter defined), Trade Fixtures and all Alterations that Landlord
has elected to require Tenant to remove, as required under the Lease.
In consideration for Landlord's execution of this Amendment, Tenant
hereby conveys to Landlord certain of Tenant's furniture located in
the Reduction Space as more particularly described on the attached
Exhibit C (the "Furniture") and in accordance with the terms and
conditions of the Xxxx of Sale (the "Xxxx of Sale") attached hereto as
Exhibit B. On or before the execution of this Amendment, Tenant shall
execute and deliver to Landlord the
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original Xxxx of Sale. Tenant hereby represents and warrants that the
Furniture in the Reduction Space is free and clear of all liens,
charges and encumbrances, that Tenant is the rightful owner of all of
the Furniture and that Tenant has the full right and authority to
convey good title to the Furniture to Landlord. The foregoing
representation and warranty shall be deemed to be remade by Tenant in
full as of the Reduction Effective Date.
B. Effective as of June 30, 2002 (the "Reduction Effective Date"), the
Premises is decreased from approximately 159,350 rentable square feet
consisting of approximately 79,675 rentable square feet in the 100
Building and approximately 79,675 rentable square feet in the 200
Building to approximately 79,675 rentable square in the 200 Building
by the elimination of the Reduction Space. As of the Reduction
Effective Date, the Reduction Space shall be deemed surrendered by
Tenant to Landlord, the Lease shall be deemed terminated with respect
to the Reduction Space, and the "Premises", as defined in the Lease,
shall be deemed to mean the Original Premises, less the Reduction
Space; provided, if Tenant shall violate any provision hereof or if
Tenant's representations herein shall be false or materially
misleading, Landlord shall have the right to declare this Amendment
null and void and to reinstate the Lease with respect to the Reduction
Space in addition to, and not in lieu of, any other rights or remedies
available to Landlord.
C. If Tenant shall holdover in the Reduction Space beyond the day
immediately preceding the Reduction Effective Date, Tenant shall be
liable for Base Rent, Additional Rent and other charges respecting the
Reduction Space equal to 1.25 times the amount in effect under the
Lease prorated on a per diem basis and on a per square foot basis for
the Reduction Space. Such holdover amount shall not be in limitation
of Tenant's liability for consequential or other damages arising from
Tenant's holding over nor shall it be deemed permission for Tenant to
holdover in the Reduction Space.
II. Decrease in Term. The Term of the Lease with respect to the 200 Premises is
hereby decreased by a period of 78 months and 12 days and shall expire on
April 30, 2006 ("Early Termination Date"), unless sooner terminated in
accordance with the terms of the Lease.
III. Base Rent. Commencing as of the Reduction Effective Date and ending on the
Early Termination Date, the schedule of monthly installments of Base Rent
contained in the Lease is hereby revised as follows:
A. 10 equal monthly installments of $251,615.00, each payable on or
before the first day of each month during the period beginning as of
the Reduction Effective Date and ending on the last day of the 10/th/
full calendar month following the Reduction Effective Date (i.e. April
30, 2003). Notwithstanding the foregoing, on or before the first day
of each month during this period, Landlord shall draw on the Letter of
Credit for the full amount of each monthly installment as set forth in
Section VI herein, and Landlord's receipt of any such draw shall
satisfy in full Tenant's obligations with respect to the payment of
Base Rent due for any such month.
B. 12 equal monthly installments of $166,431.00, each payable on or
before the first day of each month during the period beginning as of
the first day of the 11/th/ full
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calendar month following the Reduction Effective Date and ending on
the last day of the 22/nd/ full calendar month following the Reduction
Effective Date. Notwithstanding the foregoing, on or before the first
day of each month during this period, Landlord shall draw on the
Letter of Credit in the amount of $41,431.00 and apply such amount to
each monthly installment as set forth in Section VI herein. The
balance of $125,000.00 per month shall be payable by Tenant to
Landlord in accordance with the terms of the Lease, as hereby amended.
Landlord's receipt of the $125,000 per month, together with Landlord's
receipt of the monthly draw in the amount of $41,431.00 shall satisfy
in full Tenant's obligations with respect to the payment of Base Rent
due for any such month.
C. 24 equal monthly installments of $166,667.00, each payable on or
before the first day of each month during the period beginning as of
the first day of the 23rd full calendar month following the Reduction
Effective Date and ending on the Early Termination Date. All such Base
Rent during this period shall be payable by Tenant in accordance with
the terms of the Lease, as hereby amended.
IV. Tenant's Share. For the period commencing on the Reduction Effective Date
and ending on the Early Termination Date, Tenant's Share is decreased from
100% to 50%. Notwithstanding anything in this Amendment to the contrary,
Tenant shall remain liable for all year-end adjustments with respect to
Tenant's Share of Operating Costs and Taxes applicable to the Reduction
Space for that portion of the calendar year preceding the Reduction
Effective Date. Such adjustments shall be paid at the time, in the manner
and otherwise in accordance with the terms of the Lease, unless otherwise
specified herein. Notwithstanding anything in the Lease or this Amendment
to the contrary, so long as Tenant is not in default under the Lease or
this Amendment, Tenant shall be entitled to an abatement of Additional Rent
(i.e. Tenant's Share of Operating Costs and Taxes) with respect to the 200
Premises for the period beginning on the Reduction Effective Date and
ending on the last day of the 22nd full calendar month following the
Reduction Effective Date (the "Abated Additional Rent"). If Tenant defaults
at any time during the Term and fails to cure such default within any
applicable cure period under the Lease, as hereby amended, all Abated
Additional Rent shall immediately become due and payable. The payment by
Tenant of the Abated Additional Rent in the event of a default shall not
limit or affect any of Landlord's other rights, pursuant to the Lease or at
law or in equity. Only Additional Rent shall be abated pursuant to this
Section, and other costs and charges specified in the Lease or this
Amendment shall remain as due and payable pursuant to the provisions of the
Lease or this Amendment. Commencing as of the first day of the 23rd full
calendar month following the Reduction Effective Date and ending on the
Early Termination Date, Tenant shall pay Tenant's Share of Operating Costs
and Taxes applicable to the 200 Premises in accordance with the terms of
the Lease, as amended hereby. In addition, Tenant shall remain liable for
all year end adjustments with respect to Tenant's Share of Operating Costs
and Taxes applicable to the 200 Premises for that portion of the calendar
year up to and including the Early Termination Date. Such adjustments shall
be paid at the time, in the manner and otherwise in accordance with the
terms of the Lease, unless otherwise specified herein.
V. Termination Fee. Tenant agrees to pay Landlord, upon Tenant's execution
hereof, the amount of $1,140,924.00 (the "Termination Fee"), payable in the
manner set forth in Section VI below.
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VI. Security Deposit. As of April 1, 2002, Landlord was holding the sum of
$5,648,000.00 as the security deposit (the "Security Deposit") required
pursuant to Section 4 (Security Deposit) of the Lease and Section 38
($5,240,000.00 Letter of Credit) of the Lease in the form of (i) cash
("Cash Security Deposit") in the amount of $408,000.00; and (ii) a letter
of credit (the "Letter of Credit") from Tenant in the amount of
$5,240,000.00 of which Landlord is the beneficiary. The total Rent due for
the month of April, 2002 was $497,918.00. Landlord and Tenant acknowledge
and agree that (a) Landlord has, prior to the date of this Amendment,
applied the full amount of the Cash Security Deposit to a portion of
Tenant's outstanding balance of Rent accrued through April 30, 2002, and
therefore, Landlord shall retain the Cash Security Deposit; and (b) Tenant
hereby releases any and all claims to the Cash Security Deposit. Landlord
and Tenant further acknowledge and agree that Tenant currently owes Rent
for the month of May, 2002 equal to $497,918.00 and Tenant will owe Rent
for the month of June, 2002 equal to $497,918.00. Accordingly, Landlord and
Tenant acknowledge and agree that Landlord shall draw upon the Letter of
Credit as follows: (1) upon the execution of this Amendment by Tenant,
Landlord shall draw upon the Letter of Credit in the amount of
$2,226,678.00 consisting of (a) $89,918.00 as payment for the remaining
amount of unpaid Rent due for the month of April, 2002, (b) $497,918.00 as
payment for the amount of unpaid Rent due for the month of May, 2002, (c)
$497,918.00 as payment for the amount of Rent which will be due for the
month of June, 2002, and (d) $1,140,924.00 as payment of the Termination
Fee required hereunder; (2) as of the first day of each month during the
period commencing on the Reduction Effective Date and ending on the last
day April, 2003, Landlord shall draw upon the Letter of Credit in the
amount of $251,615.00, per month and apply such amount to the monthly
installment of Base Rent and Additional Rent due to Landlord under the
Lease (as amended in this Amendment) for each such month (i.e. total draw
of $2,516,150.00 during this period); and (3) on or about the first day of
each month during the period commencing on May 1, 2003 and ending on April
30, 2004, Landlord shall draw upon the Letter of Credit in the amount of
$41,431.00, per month and apply such amount to the monthly installment of
Base Rent and Additional Rent due to Landlord under the Lease (as amended
in this Amendment) for each such month (i.e. total draw of $497,172.00
during this period). Assuming that Landlord has actually received all
appropriate payments in connection with all draws made by Landlord under
the Letter of Credit as provided herein, then upon Landlord's draw on the
Letter of Credit for the month of April, 2004, Landlord shall have drawn on
the full amount of the Letter of Credit and therefore, Landlord shall
retain the Letter of Credit, and Tenant shall release any and all claims to
the Letter of Credit. The schedule set forth above for drawing on the
Letter of Credit shall not restrict or prohibit Landlord from drawing on
the Letter of Credit for any other reason, including but not limited to any
draw to cure an event of default by Tenant under the Lease. In the event
and to the extent required as a precondition to accessing and applying the
Cash Security Deposit and the Letter of Credit or any portion thereof in
the manner contemplated by this Amendment, Landlord and Tenant acknowledge
that for purposes of applying the Cash Security Deposit and drawing upon
and applying the Letter of Credit in accordance with this Amendment, the
full amount of the Security Deposit constitutes funds due and owing
Landlord as a result of Tenant's failure to pay rent in accordance with the
terms of the Lease. Tenant shall diligently cooperate with Landlord to
facilitate Landlord's draw on the remaining amount of the Letter of Credit.
Such cooperation may include, but not be limited to, the obligation to
execute such documents as may be required to permit Landlord to draw on the
Letter of Credit as provided herein. Notwithstanding anything to the
contrary contained in the Lease or this Amendment with respect to
Landlord's right to draw on the Letter of Credit, Tenant agrees that in the
event
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the bank which has issued the Letter of Credit refuses to accept
Landlord's draw requests or if such draw requests are not processed or
approved for any reason, or in the event the Tenant fails to pay Landlord
any of the other amounts payable pursuant to this Amendment when due,
then, in the event Tenant does not remedy any such payment deficiency
within five (5) Business Days of receipt of written notice from Landlord,
at Landlord's sole option, in addition to, and not in lieu of, any other
rights or remedies available to Landlord, Landlord shall have the right to
declare this Amendment null and void and of no force and effect and the
Term of the Lease with respect to the entire Original Premises shall be as
stated in the Lease, without giving effect to this Amendment.
VII. Representations. Each party represents to the other that it has full power
and authority to execute this Amendment. Tenant represents that it has not
made any assignment, sublease, transfer, conveyance of the Lease or any
interest therein or in the Reduction Space other than those explicitly
recited herein and further represents that there is not and will not
hereafter be any claim, demand, obligation, liability, action or cause of
action by any other party respecting, relating to or arising out of the
Reduction Space, and Tenant agrees to indemnify and hold harmless Landlord
and the Landlord Related Parties (as defined in the "Miscellaneous"
Section below) from all liabilities, expenses, claims, demands, judgments,
damages or costs arising from any of the same, including without
limitation, attorneys' fees. Tenant acknowledges that Landlord will be
relying on this Amendment in entering into leases for the Reduction Space
with other parties.
VIII. Other Pertinent Provisions. Landlord and Tenant agree that, effective as
of the date of this Amendment (unless different effective dates are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
A. Landlord's Termination Right. At any time during the remaining portion
of the Term subsequent to March 1, 2003, Landlord shall have the right
to terminate the Lease (the "Termination Option") for any reason, by
providing at least 60 days prior written notice to Tenant, at any time
on or before February 29, 2004, in which event, the Lease shall be
deemed terminated as of the date of termination (the "Accelerated
Early Termination Date") specified in such notice. If Landlord
exercises the Termination Option as provided for herein, Tenant shall
remain liable for all Rent and other sums due under the Lease up to
and including the Accelerated Early Termination Date even though
xxxxxxxx for such may occur subsequent to the Accelerated Early
Termination Date. In addition, in the event Landlord exercises the
Termination Option as provided for herein, Landlord shall be entitled
to draw on and retain for its own account the remaining balance not
previously drawn on from the Letter of Credit as a fee in connection
with the acceleration of the Early Termination Date and not as a
penalty.
B. Landlord's Address for Payment of Rent. The "Landlord's Address for
Payment of Rent" as set forth in the Basic Lease Information of the
Lease is deleted in its entirety and replaced with the following:
"Payments of Rent only shall be made payable to the order of Equity
Office Properties at the following address:
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EOP Operating Limited Partnership
as Agent for Seaport Plaza Associates, LLC
File 30088
X.X. Xxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000"
C. Landlord's Address for Notices. The "Landlord's Address for Notices"
as set forth in the Basic Lease Information of the Lease is deleted in
its entirety and replaced with the following:
"Seaport Plaza Associates, LLC
c/o Equity Office Properties Trust
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Property Manager
With a copy to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - San Francisco Region"
D. Property Manager. The Property Manager as set forth in the Basic Lease
Information of the Lease is hereby deleted and replaced with "EOP
Operating Limited Partnership".
E. Tenant's Signs.
1. Effective as of the Reduction Effective Date, the third sentence
of Section 40 of the Lease shall be deleted in its entirety and
replaced with the following:
"Throughout the Term of this Lease Tenant shall not make any
change or changes to Tenant's Sign without the prior written
consent of Landlord; provided, however, effective as of the
Reduction Effective Date, subject to the other provisions of this
Section 40, Tenant shall be entitled only to a proportionate
share of the space on the Monument based upon the rentable area
leased by Tenant compared with the rentable area in the
Buildings, and Tenant shall replace Tenant's Sign with a smaller
Tenant's Sign on the Monument to accommodate other tenants in the
Project. "
2. On or before the Reduction Effective Date, Tenant shall remove,
at Tenant's sole cost and expense, the exterior signage located
on the exterior of the 100 Building. If Tenant fails to remove
such exterior signage by the Reduction Effective Date, then
Landlord shall have the right to do so at Tenant's expense, and
Tenant agrees to pay to Landlord the costs of such removal within
30 days after Landlord invoices Tenant for the same. In addition,
so long as (a) Tenant is not in default under the Lease, as
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amended, (b) Tenant has not assigned its interest in the Lease,
as amended, (c) Tenant has not subleased any portion of the 200
Building, and (d) Tenant continues to lease the entire 200
Building, then Tenant shall be allowed to relocate, install and
maintain the exterior signage that is currently located on the
exterior of the 100 Building onto the exterior of the 200
Building (the "200 Building Sign"). The 200 Building Sign shall
be (i) subject to Landlord's prior written approval as to the
size, location, material, lighting and color, and all other
aspects of such sign, which approval shall not be unreasonably
withheld, (ii) subject to all applicable ordinances, regulations
and the prior approval of all applicable governmental
authorities, including the City of Redwood City, California,
(iii) installed only after Tenant obtains all necessary permits
and approvals from the applicable authorities, and (iv) installed
and maintained in a first class condition at Tenant's sole cost
and expense (including, without limitation, the cost of obtaining
all permits and other governmental approvals). Throughout the
Term of the Lease, Tenant shall not make any changes to the 200
Building Sign without the prior written consent of Landlord. At
the expiration or earlier termination of the Term, or in the
event any of the conditions set forth above are no longer
applicable (e.g. Tenant subleases a portion of the 200 Building),
then Landlord may elect to give Tenant written notice requesting
Tenant to remove the 200 Building Sign at Tenant's sole cost and
expense. If Tenant fails to remove the 200 Building Sign within
15 days after the date of Landlord's written notice to Tenant,
then Landlord shall have the right to do so at Tenant's expense,
and Tenant agrees to pay to Landlord the costs of such removal
within 30 days after Landlord invoices Tenant therefor. Tenant
will be liable for any damage or injury to Landlord from any
Claims arising out of the 200 Building Sign. Notwithstanding any
of the foregoing to the contrary, Tenant shall have no right to
install or maintain the 200 Building Sign in the event Landlord
would be prohibited or limited, for any reason, in its ability to
install signage on the exterior of the 100 Building.
F. $5,240,000.00 Letter of Credit. Effective as of the Reduction
Effective Date, Sections 38(a) and (b) of the Lease shall be deleted
in their entirety and replaced with the following:
"Within three (3) Business Days following the Executed Lease Delivery
Date, Tenant shall deliver to Landlord an unconditional, irrevocable,
transferable and negotiable standby letter of credit (the "L/C #2") in
an amount equal to $5,240,000.00 ("Face Amount"), issued by a bank or
trust company ("Issuer") and in form and content acceptable to
Landlord, in its sole and absolute discretion, as additional security
for the performance of Tenant's obligations under this Lease, as
amended. An L/C in the form attached hereto as Exhibit E is hereby
approved by Landlord. L/C#2 shall name Landlord as beneficiary
thereunder and provide that draws, including partial draws, at
Landlord's election, will be honored upon the delivery to the Issuer
of a certificate signed by Landlord, or its authorized agent, that the
amount drawn is being drawn pursuant to the terms of the Lease, as
amended. L/C#2 shall also provide that it will be automatically
extended upon each renewal date unless the Issuer thereof delivers to
Landlord, no later than forty-five (45) days prior to the stated
expiration date of L/C#2, written notice of
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Issuer's intent not to extend or renew L/C/#2. During any period that
Tenant is required to maintain L/C#2, Tenant shall, at least thirty
(30) days prior to any expiration or termination of L/C#2, provide
Landlord either with written confirmation that the existing L/C#2 will
be automatically extended and renewed or with a new letter of credit
that satisfies all of the requirements for L/C#2 in this Section 38.
In addition, upon a proposed sale or other transfer of any interest in
the Project, the Land, this Lease (as amended), or Landlord (including
consolidations, mergers or other entity changes), Tenant, at its sole
cost and expense and upon ten (10) Business Days' notice, shall,
concurrent with Landlord's delivery to Tenant of the then outstanding
L/C#2, deliver to any such transferees, successors, or assigns a
replacement L/C#2 on identical terms (except for the stated
beneficiary) from the same Issuer or another bank or trust company
acceptable to Landlord, in Landlord's sole discretion, naming the new
Landlord as the beneficiary thereof. Tenant's failure to perform or
observe any of the covenants set forth in this Section 38 for any
reason shall entitle Landlord to draw on the full amount of L/C#2. Any
amount(s) drawn under L/C#2 shall be held or used by Landlord in
accordance with the terms of Sections VI and VIII.A of the First
Amendment to the Lease."
G. Deleted Section. Effective as of the Reduction Effective Date, in
addition to the other Sections and provisions of the Lease modified
herein, Section 41 (Extension Option) of the Additional Provisions
Rider of the Lease shall be deleted in its entirety and shall be of no
further force and effect.
IX. Miscellaneous.
A. This Amendment, including the following exhibits and attachments which
are hereby incorporated into and made a part of this Amendment, set
forth the entire agreement between the parties with respect to the
matters set forth herein. There have been no additional oral or
written representations or agreements. Under no circumstances shall
Tenant be entitled to any Rent abatement, improvement allowance,
leasehold improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in connection
with entering into the Lease, unless specifically set forth in this
Amendment. This Amendment shall not be relied upon by any other party,
individual, corporation, partnership or entity as a basis for reducing
its lease obligations with Landlord or for any other purpose. Except
to the extent required by any applicable Securities and Exchange
Commission requirements, or any applicable Federal or State securities
laws, Tenant agrees that it shall not disclose any matters set forth
in this Amendment or disseminate or distribute any information
concerning the terms, details or conditions hereof to any person, firm
or entity without obtaining the express written consent of Landlord.
In connection therewith, Tenant shall submit any required press
releases regarding the terms of this Amendment to Landlord prior to
dissemination to the public. Any such press releases shall be subject
to Landlord's prior review and written approval (which approval shall
not be unreasonably withheld).
B. Except as herein modified or amended, the provisions, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
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C. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern and
control.
D. Submission of this Amendment by Landlord is not an offer to enter into
this Amendment but rather is a solicitation for such an offer by
Tenant. Landlord shall not be bound by this Amendment until Landlord
has executed and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment. Tenant agrees to indemnify
and hold Landlord, its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents (collectively,
the "Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment. Landlord
agrees to indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and agents,
and the respective principals and members of any such agents
(collectively, the "Tenant Related Parties") harmless from all claims
of any brokers claiming to have represented Landlord in connection
with this Amendment.
G. Each signatory of this Amendment represents hereby that he or she has
the authority to execute and deliver the same on behalf of the party
hereto for which such signatory is acting.
H. At Landlord's option, this Amendment shall be of no force and effect
unless and until accepted by the Guarantor of the Lease, who by
signing below shall agree that its Guaranty shall apply to the Lease
as amended herein, unless such requirement is waived by Landlord in
writing.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord, Tenant and Guarantor have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
SEAPORT PLAZA ASSOCIATES, LLC, a California
limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Name:
------------------------------
Title: Senior Vice President
------------------------------
TENANT:
THE 3DO COMPANY, a California corporation
By: /s/ Xxxxx Xxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx Xxxx
Title: Executive Vice President
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
GUARANTOR:
THE 3DO COMPANY, a Delaware corporation
By: /s/ Xxxxx Xxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx Xxxx
Title: Secretary
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
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Title: Chief Financial Officer
NOTARY PUBLIC ACKNOWLEDGEMENTS FOR GUARANTOR ARE ON NEXT PAGE
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STATE OF CALIFORNIA
--------------- )
) SS
COUNTY OF SAN MATEO )
-------------
BE IT REMEMBERED, that on the 15th day of May, 2002, before me, a Notary
Public in and for said County personally appeared Xxxxx Xxxx Xxxx, who advised
me that he is Secretary of The 3DO Company (a Delaware corporation), the
Guarantor in the Guaranty of the Lease who acknowledged that the signing hereof
was the duly authorized act and deed of said corporation and his/her free and
voluntary act and deed as said officer for the uses and purposes therein
mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written.
XXXXXXX XXXXXX
----------------------------
Notary Public
My Commission Expires: 10-9-03
---------------------
STATE OF CALIFORNIA )
---------------
) SS
COUNTY OF SAN MATEO )
-------------
BE IT REMEMBERED, that on the 15th day of May, 2002, before me, a Notary
Public in and for said County personally appeared Xxxxxxx Xxxxxxx, who advised
me that he is Chief Financial Officer of The 3DO Company (a Delaware
corporation), the Guarantor in the Guaranty of the Lease who acknowledged that
the signing hereof was the duly authorized act and deed of said corporation and
his/her free and voluntary act and deed as said officer for the uses and
purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written.
XXXXXXX XXXXXX
----------------------------
Notary Public
My Commission Expires: 10-9-03
---------------------
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EXHIBIT A
OUTLINE AND LOCATION OF REDUCTION SPACE
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EXHIBIT B
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that THE 3DO COMPANY, a California corporation
("Seller"), for the sum of Ten Dollars ($10.00) paid by SEAPORT PLAZA
ASSOCIATES, LLC, a California limited liability company ("Purchaser") pursuant
to that certain First Amendment, hereby sells to Purchaser the personal property
("Personal Property") more particularly referred to in Exhibit C attached hereto
in its "as-is, where-is" condition.
TO HAVE AND TO HOLD the same unto Purchaser to and for its own use and behalf
forever. Seller hereby agrees to pay all sales taxes payable by reason of the
transfer to Purchaser of said Personal Property and Seller shall indemnify
Purchaser in connection therewith. Seller hereby represents and warrants to
Purchaser that: (a) Seller is the rightful owner of all of the Personal
Property; (b) Seller has not made any disposition or conveyance of the Personal
Property; (c) Seller has no knowledge of any fact or circumstance which would
give rise to any claim, demand, obligation, liability, action or cause of action
arising out of or in connection with the Personal Property; and (d) no other
person or entity has an interest in the Personal Property, collateral or
otherwise.
IN WITNESS WHEREOF, Seller has caused these presents to be signed by its duly
authorized officers as of May 14, 2002.
SELLER:
THE 3DO COMPANY,
a California corporation
By: /s/ Xxxxx Xxxx Xxxx
------------------------------
Name: Xxxxx Xxxx Xxxx
Title: Executive Vice President
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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EXHIBIT C
FURNITURE
[TO BE MUTUALLY AGREED UPON AS SOON AS PRACTICABLE]
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